Stop us if you’ve heard this one. Federal prosecutors no longer need Apple’s assistance in unlocking an iPhone in a Brooklyn drug case, as investigators have found a way to do so themselves. It’s the second major case recently where the government has attempted to demand Apple’s help but, before a judge granted the government’s request, the Justice Department managed to unlock the iPhone in question. . . .

In Stinson v. City of New York, 10 Civ. 4228 (RWS) (S.D.N.Y. Jan. 2, 2016), New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants .

Case Background

In this civil rights class action against the City of New York, it was determined that the City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case and the litigation hold was not effectively communicated, and none of the officers who were named in the City’s initial disclosures acknowledged receiving it. . . .

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case. . . .

You may be ahead of the tech curve – maybe not. My bet is that you already have a smart phone and you probably have an iPad or some type of tablet reader. What about the rest of the things on this list? You have not want more than the tech you already have, but here’s some food for thought that scrapes the top of the tech iceberg. -CCE

So you’ve grown tired of Apple’s walled garden of apps and the iron grip it maintains over the iOS platform. Well, the freedom of Android welcomes you with open arms, but don’t forget to bring your data along for the ride!

Apple doesn’t make it particularly easy to move your data from iOS to Android—it’s more interested in moving people in the other direction. Still, with just a few tools and some patience, you can be up and running on Android without missing a beat. . . .

So many great ideas and useful apps, even if you are not tech savvy. This is stuff you can, and should, use right now. -CCE

One of the most fun and useful things I’ve been doing lately is automating small processes I do all the time. It took me a while to work up the courage to dive into automation, as it always seemed like a really difficult, technical thing to do, which should be left to programmers.

Luckily, there are lots of tools being created lately to make automation easier for those of us without a solid understanding of how our computers really work. . . .

The latest and greatest from Jeff Richardson. Good discussion on ways to make text messages look good at trial. New iPhone apps. The sale on the password manager app is too good to pass up. I particularly like the idea of using the Apple Watch for map directions. As always, Mr. Richardson shares the good stuff. -CCE

This index allows you to browse through the more significant posts on iPhone J.D. since I started the website on November 17, 2008, including reviews of iPhone and iPad apps and accessories plus other significant posts. Also, remember that there is a helpful search box at the top right of every page if you are trying to find something specific. . . .

If there are rules for or against using any type of technology in a courtroom, you will normally find the court’s preference in its local rules. Courts don’t write local rules just for fun. They mean it when they say they don’t like something. If your court clearly states in its local rules that certain types of technology are not tolerated, don’t temp fate by assuming that you will be the exception.

Please note the comments at the end of the article. There is more valuable information about other court rules. -CCE

There are countless ways that an iPhone and iPad can be useful to an attorney while in court — whether you are at counsel table or just monitoring proceedings from the cheap seats in back. I often use my iPhone to look up a statute, check my calendar, get some information from an email, or remind myself of the name of another attorney in the courtroom. I often use my iPad to look at a case cited by an opponent, review the key part of an exhibit or transcript, or take notes. But you cannot do any of this unless the court lets you use electronic devices in the courtroom. I remember a time many years ago when the Eastern District of Louisiana did not allow any cell phones, even if turned off, and if my Palm Treo was still in my pocket, I had to walk back to my office, a few blocks away, and leave it there. Many courts are now more lenient, but attorneys should not just assume that it is okay to plan to use an iPhone and iPad in court. Instead, it is wise to first determine if there is an applicable court rule on the issue.

I write about this today because Ray Ward, an appellate attorney at my law firm, has a case that is soon set for oral argument before the U.S. Fifth Circuit, and in connection with that case, yesterday he received a notice from the Fifth Circuit of a new policy on electronic devices in the courtroom. Ray wrote about the notice (and attached a copy) in this post on his Louisiana Civil Appeals blog. In short, you can now have an iPhone or iPad in the courtroom, but it must be turned off unless you are presenting argument or at counsel table. And even then, you cannot take pictures or video, nor can you use social media. . . .

My guess is that most people who use a smart phone access some kind of confidential information, such as your bank account or conversations with a client or the office. If you do not have a PIN lock on your smart phone, this truly is special kind of stupid.

This is not a hard one to understand. If you use your cell phone to communicate with clients, sync your phone to your office computer and docket, or attach yourself to your office and confidential information – without taking simple, basic security measures – you are inviting a dangerous breach of confidentiality. -CCE

44% of respondents say it’s too much of a hassle, new survey reports.

People put a lot of sensitive info on their phones, but they often give little though to how secure their data is. In a survey by a security company, over half of the respondents said they didn’t bother with a PIN lock. This takes on a whole new dimension when you begin to understand how many of these people keep corporate data on the device.

Losing an unlocked phone can be far worse than losing a wallet. Emails on the device alone can reveal a wealth of information about the person, including where they bank, where they live, names of family members, and more. If company email is on the device, and it often is, there can be competitive information, salaries, system passwords, etc. If any of those emails contain links, often clicking on it will take you into the website, be it Facebook or a corporate portal.

According to Confident Technologies, 65% of users have corporate data on their phone, even though only 10% actually have a corporate issued device.

For that majority that don’t lock their phone at all, 44% said it is too much of a hassle to lock it and 30% said they weren’t worried about security. These are likely the same people that store things like social security numbers, passwords, and other sensitive information in text files or basic note applications. They may even store their computer’s password on a Post-It Note in their center desk drawer. . . .

A recent story illustrates the bonanza of social media evidence police can obtain without ever leaving the station.

From the Richmond Times Dispatch, someone allegedly crashed a van into a Richmond area high school.

‘After the crash, which occurred about 1:30 a.m., investigators monitored Twitter, Facebook and other social media sites for information on who may have been responsible. The effort paid off, police said.

In addition to incriminating tweets, text messages and phone calls, detectives recovered a cellphone video of the crash itself — footage that shows a 1996 Ford Club Wagon van slamming into the school, said Chesterfield police Lt. Steve Grohowski.’

Whether you’re looking to market your firm, increase your practice’s productivity, prepare and present information at trial, or increase your practice management capacity, there’s an app for you! Check out the best new apps for lawyers, for iOS, Android and Windows Phone, from January 2015!

Tech company Turn said it would stop using tracking cookies that are impossible to delete. The decision came in response to a ProPublica article this week that revealed the controversial practice.

‘We have heard the concerns and are actively re-evaluating this method,’ Max Ochoa, Turn’s chief privacy officer, wrote in a blog post.

He said the company plans aims to suspend the practice by ‘early February.’

Turn’s zombie cookie was exploiting a hidden undeletable number that Verizon uses to track its customers on their smartphones on tablets. Turn used the Verizon number to respawn tracking cookies that users had deleted. The company said it will now re-evaluate its practices.

Turn’s decision to suspend the practice was a sharp reversal from its previous stance. It had previously argued that ‘clearing cookies is not a reliable way for a user to express their desire not to receive tailored advertising.’

Okay, you have to admit that it’s pretty cool when a judge calls to pick your brain! – CCE

I’m peripatetic. My stuff lives in Austin; but, I’m in a different city every few days. Lately looking for a new place for my stuff to await my return, I’m reminded of the first three rules of real estate investing: 1. Location; 2. Location and 3. Location.

Location has long been crucial in trial, too: ‘So, you claim you were at home alone on the night of November 25, 2014 when this heinous crime was committed! Is that what you expect this jury to believe?’ If you can pinpoint people’s locations at particular times, you can solve crimes. If you have precise geolocation data, you can calculate speed, turn up trysts, prove impairment and even show who had the green light. Location and time are powerful tools to implicate and exonerate.

A judge called today to inquire about ways in which cell phones track and store geolocation data. He wanted to know what information is recoverable from a seized phone. I answered that, depending upon the model and its usage, a great deal of geolocation data may emerge, most of it not tied to making phone calls. Tons of geolocation data persist both within and without phones.

Cell phones have always been trackable by virtue of their essential communication with cell tower sites. . . .

In recent weeks, Verizon and AT&T have been caught up in a privacy firestorm over their use of so-called ‘permacookies,’ a method of tracking what their users do while browsing the Web with the intent of sharing that data with advertisers. Verizon’s permacookie program lives on, but AT&T has ceased the practice, ProPublica reported on Friday.

At least for now.

AT&T tells ProPublica that its use of permacookies was ‘part of a test,’ which has since wrapped up, but the company says that it ‘may still launch a program to sell data collected by its tracking number.’ For its part, AT&T says that it will allow customers to opt out of the program if—or when—it decides to use permacookies for advertising purposes.

The story behind the story: Permacookies aren’t cookies in the traditional sense: Instead, they’re unique identifiers appended to website addresses you type in on your device that let carriers see what kinds of sites you visit.

Permacookies exist for the same reason traditional tracking cookies exist—so advertisers can see what sorts of things you might be interested and serve up related ads in the hopes that you’ll click on them. But unlike regular tracking cookies, which you can easily delete from your browser or block entirely, there’s no way of removing or blocking permacookies since they’re handled entirely by the carrier. . . .

“No person…shall be compelled in any criminal case to be a witness against himself….”

The Supreme Court has stated that the Fifth Amendment only covers “testimonial” evidence that results from compelled communicative acts, i.e., acts which disclose the content of one’s mind. Therefore, the Fifth Amendment does not cover a suspect’s act of appearing in a lineup or giving a blood sample to determine whether there are drugs in his system. The Fifth Amendment also does not cover the act of completing a handwriting exemplar. Imagine that the police find an alleged confession note written by the defendant. The prosecution can force the defendant to complete a handwriting exemplar in which the defendant writes a pre-printed paragraph in his handwriting so that a handwriting expert can compare the exemplar and the confession note. All of these and similar acts are not communicative because they are nontestimonial in that they do not force the defendant to disclose the contents of his mind.

What about if the defendant has encrypted files on his computer? Can the prosecution force the defendant to decrypt them? Some courts have said no. Other courts have said yes.

Can the prosecution force a defendant to supply his fingerprint to use for the TouchID on his iPhone? For the last year, I’ve used this article to teach my students that a judge could likely order a defendant to supply his fingerprint to unlock his iPhone. Recently, this possibility has become a reality.

[A] judge has ruled that you can be forced to relinquish your fingerprint to investigators seeking access to your device. The reason, says the judge, is that the fingerprint isn’t knowledge like a password, but is instead a physical object of sorts, like a key or a DNA sample.

The ruling was made recently by Virginia Beach Circuit Court Judge Steven Frucci, and was the result of a case against EMS captain David Baust, who was accused of attempted murder. The case’s prosecutors wanted access to Baust’s phone, believing that it might have a video of the alleged crime, but the defendant’s lawyer argued against this.

[I]t’s unclear how the ruling will impact Baust’s case. If his phone is protected by Touch ID, prosecutors could access it using Frucci’s ruling. If the phone is protected by a passcode or both a passcode and Touch ID, they can’t . . . .

One workaround to this issue could be to just turn off your phone if cops approach. In that case, you’d have to enter your four-digit pin when you turn it back on, even if you use Touch ID. . . .

In the business of law, it’s extremely important to stay on top of the latest legal developments. With Legal Edge from JD Supra, you can do just that.

Legal Edge allows you to stay up to date with the latest legal news via updates, alerts, and case filings from the nation’s legal professionals. With this app, you’ll receive a daily stream of articles, briefs, and newsletters on all areas of law. It also includes court filings from notable and newsworthy cases.

Through Legal Edge, you can browse information by industry, profession or topic of interest. You can also contact lawyers or firms directly through your iPhone with any comments or questions you may have about certain documents (this feature is only available for documents posted by JD Supra premium account holders).

The app was recently updated to include informative videos and a save/view functionality which allows you to view documents offline. All that is required is an app that supports PDF viewing on your devices (such as iBooks).

You can rest easy knowing that the content on Legal Edge is provided by Amlaw 100 law firms, attorneys, and other legal organizations and professionals.

Currently, Legal Edge is free and is only available for iOS devices. You can download it today from the Apple App Store.

Apple said Monday it was ‘actively investigating’ the violation of several of its iCloud accounts, in which revealing photos and videos of prominent Hollywood actresses were taken and posted all over the Web.

* * *

Security experts said the hacking and theft of revealing pictures from the Apple iCloud accounts of a few celebrities might have been prevented if those affected had enabled two-factor authentication on their accounts.

Apple hasn’t yet said anything definitive about how the attacks were carried out, but security researchers at the security firm FireEye, examined the evidence that has emerged so far, and said it appears to have been a fairly straightforward attack. That said, it is also one that could have been thwarted had some additional steps to secure the targeted accounts been taken.

That additional step is known as two-factor authentication. Apple calls it ‘two-step verification,’ although it doesn’t work very hard to tell people about it, said Darien Kindlund, director of threat research at FireEye.

‘In general Apple has been a little late to the game in offering this kind of protection, and doesn’t advertise it,’ he said. ‘You have to dig through the support articles to find it.’

When enabled, two-factor authentication requires users to enter a numerical code that is sent to their phone or another device, in addition to using their regular password. Since the number constantly changes, it makes it much more difficult for attackers to gain access the account, even if they know the password.

Assuming the compromised accounts were running without the two-step option turned on, it would then have been relatively easy for the attacker to gain access to the accounts.

As The Next Web reported earlier today the attack may be linked to software on GitHub called iBrute that is capable of carrying out automated brute-force attacks against iCloud accounts. In this scenario, an attacker simply guesses a password again and again until they succeed. While tedious and time-consuming for a person, it’s a simple and infinitely faster process for a computer.

The as-yet unknown attacker had one other thing going for him: Apple allows an unlimited number of password guesses. Normally, systems limit the number of times someone can try to log in to a system with an incorrect password before the account is locked down entirely. Apple has since fixed that aspect of the vulnerability.

‘The attackers never should have been allowed to make an unlimited number of guesses,’ Kindlund said. . . . [Emphasis added.]

I can always depend on Jim to recommend the best practices to keep a law office moving smoothly, as well as a preview of new technology. Although Jim’s home base is the Oklahoma Bar Association, he is in national demand. If you like what you see, I recommend checking out his articles at the ABA web site. Better yet, especially for Oklahoma solo and small firms, the Oklahoma Bar Association’s Solo and Small Firm Annual Conference is a fabulous event due to Jim’s leadership and connections. You will meet technology experts from all over the country.

Jim has moved his blog to a new address: www.lawpracticetipsblog.com. The old one still works, but I do not know how long it will work. -CCE

There’s been quite a lot of technology-related news over the last several months. Some of it is directly related to the legal profession. Much of it is at least indirectly related to the legal profession. There have also been some interesting court rulings related to technology. Rather than featuring just a few items, I decided to do a roundup of many of these items with a few comments. . . .

Every year, the ABA Legal Technology Resource Center conducts a survey to gauge the use of legal technology by attorneys in the United States. My thoughts on the prior reports are located here: 2013, 2012, 2011, 2010. No survey is perfect, but the ABA tries hard to ensure that its survey has statistical significance, and every year this is one of the best sources of information on how attorneys use technology. Yesterday, the ABA released Volume VI of the report titled Mobile Lawyers. This year’s report once again shows that a large number of attorneys are using iPhones and iPads.

Six out of ten attorneys now use an iPhone

In both 2014 and 2013, the survey revealed that 91% of attorneys use a smartphone. (In 2012 the number was 89% and in 2011 the number was 88%.) For the past four years, there has been a slight correlation between law firm size and smartphone use. In 2014, for example, 86% of solo attorneys reported using a smartphone, 89% in firms of 2 to 9 attorneys, 95% in firms of 10 to 49 attorneys, and for firms with 100 or more attorneys, 96% use a smartphone. As a whole, though, it is fair to say that the survey consistently shows around nine out of every ten attorneys use a smartphone. . . .

Have you ever had a meeting with a client or acquaintance who you know nothing about? If you want to make a favorable impression, use Refresh, the app that crawls through publicly available information to give you a snapshot of your contacts.

Featured in the Wall Street Journal, Fortune, Fast Company, Tech Crunch and more, Refresh searches the web and social networks to deliver insights about the people you connect with. It delivers information including mutual interests, shared passions, and important moments. It’s an incredible tool when it comes to business and social networking. . . .

In June’s WWDC Keynote, Apple introduced their new iOS for mobile devices as well as Yosemite, their new Mac operating system (both of which are due sometime in the fall). One of the most talked about features is the way it will connect your computer and mobile devices. Phone calls and SMS can be pushed to your computer, and with the new ‘handoff’ feature you can pass whatever you’re doing from one device to another.

If you don’t own a mac, or you’re just tired of being left of of the Apple loop and would still like to have similar functionality on your devices, download the free Pushbullet app today.

Pushbullet makes it easy to get files, links, and more from your computer to your phone or vice versa. You can also send information from one mobile device to another (e.g. phone to tablet) and anyone else who uses the app. All it requires is a chrome or firefox plugin for your computer and an active gmail account. Once the plugins are configured, you can use it to push links to your other devices, or go to Pushbullet.com to send files, notes, lists, or addresses.

Android and Windows devices have full use of the app’s abilities, but Apple devices are currently lacking the “notification mirroring” feature that allows you to receive your sms, phone calls, and other app notifications on your computer. While a major bummer, the Pushbullet website mentions that this feature is coming soon!

All other push notifications show up instantly on your desktop or your mobile device, making the Pushbullet app perfect for anyone who wants a seamless way to stay on top of their notifications. Pushbullet is currently available for iOS and android devices. You can download the apps and necessary plugins directly from Pushbullet’s website.

Federal Judge Rules Gmail Account Can Be Accessed For Investigation, by evanino in Evanino Blog

In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.

A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.

Contrary to previous rulings

This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.

A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.

The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’

However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.

Experts must scan emails, not Google employee

Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.

‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.

Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.

He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.

In this version of Jeff Richardson’s “In the news,” we get a wide variety of iPhone and iPad candy. There is information about Apple’s new partnership with IBM, smart watches, making the most of Wi-Fi on an iPhone or iPad, apps to track billable hours and listen to podcasts, the iStick – a new thumb drive with a USB and Lightning connector to transfer files between a computer and an iPad without having to use a cloud (a bit pricey for my budget), and Touch ID – a fingerprint scanner for iPhone 5s.

For those of you already in football mode, Jeff shows us how to subscribe to NFL Sunday Ticket from any iOS device for $200.

If you are a hiker, you may be interested in a new device that lets you connect to another iPhone or Android device up to 50 miles away even when there is no cell or Wi-Fi Service. You may think of other ways this kind of thing would be handy. It is nice when traveling abroad because it will allow you to remain in touch with another GoTenna user without having to pay the high international cell roaming fees.

If you think that no one hears you, send an email to Apple COE Tim Cook. Someone sent an email about the quality of the music played while waiting on hold with Apple. Mr. Cook read the email, and fixed it. -CCE

Android users who sync their Google calendars with Outlook received a shocking email:

Important Announcement about Google Calendar Sync

Almost two years ago, we announced that we ended support for Google Calendar Sync. Starting on August 1, 2014, this app will no longer sync events between your Google Calendar and Microsoft Outlook Calendar.

As a Google Apps for Business, Education, or Government customer, you can use Google Apps Sync for Microsoft Outlook®.

This is frustrating, because as some folks point out, Microsoft should provide this integration for Outlook users. But the truth is, instead of helping its loyal Android customers, Microsoft wants more people using Windows phones and Office 365. This news makes many Android-Outlook users want to abandon their Android devices all together.

Purely out of coincidence, I have a local friend who emailed me a similar question about syncing his calendar with Outlook:

You know that I am fairly stupid when it comes to this stuff! LOL! I use [a big name telephone company] as my primary email, and too many people have it to change it after so many years. I guess I could keep that as my primary email address and just use Google Calendar exclusively. I just hate to have to log in to use the calendar. Lazy I guess. I do, however, also have a Gmail address! Any suggestions other than ‘using all of Google’s products’?

Stop the insanity: software solutions

There are a number of third party applications available for syncing Google Calendar with Outlook. However, a lot of questions remain about whether Google Calendar will still sync with third party programs.

If you want to test them, here’s a short list of some programs with good reviews:

•gSyncit ($19.99 single license)

•Outlook4Gmail ($19.99 single license)

•Calendar Sync Pro for Outlook ($9.99)

•synqYa

•CompanionLink ($49.95)

I’m not sure how well these will work after the August 1 deadline, though gSyncit indicates they’ve rewritten their program to coordinate with Google’s API demands. If I was going to pick an option, I’d probably select gSyncit based on that statement.

I also suggest you keep up to date with any advances by following this Google products forum thread.

Submit yourself to “the Borg”

I think my friend’s easiest option is to commit himself to Google’s services, and here’s why.

First, no attorneys should be using free Google accounts for their business work. Thus, if you’re using a yourname@gmail.com to send and receive firm and client related information, stop right now. Sign up for a Google Apps account — ask me for a referral partner discount discount code — that offers more features (including no scanning), security, and encryption of email. Having a Google Apps account also enables you to access Google Apps Sync for Microsoft Outlook. . . .